LGBT Law
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Indian law and the LGBT: Top five facts

By Harish P Friday, November 10, 2017 - 15:48
In India, legal positions on LGBT rights are not exactly very liberal and at times, even unclear. Section 377 of the Indian Penal Court (IPC), a colonial era law, criminalizes ‘carnal intercourse against the order of nature’ with a man, woman or anima! Also, penetration is enough to count as ‘intercourse’. Read on to get a low-down on what this means for different sexual communities of India…
Lesbians

It is ironic that Section 377 was inherited from the British, who themselves  de-criminalized homosexuality in the UK in 1967. It criminalizes and punishes all ‘penile non-vaginal sexual acts’, which means it is illegal for two adult gay, bisexual or transgender persons to have sex in India. But law is unclear on sex between lesbian women as Section 377 only criminalizes ‘penile non-vaginal sex’. Yet, the clause ‘against the order of nature’ remains a problem. Cunnilingus (oral sex act performed by a person on a female's genitalia) could count as ‘unnatural’ as per the Christian ethos of 1860s, when the law was made.

Gay men

Section 377’s stand on sex between two men is its most discussed feature. What sexual acts between two consenting men count as illegal? Anal penetration, fellatio (oral sex act involving the use of the mouth or throat performed on penis) and analingus (oral sex act to stimulate the anus) are all considered as illegal under Section 377. And given the scope of interpreting ‘against the order of nature’, some others acts could count too.

Bisexuals

Bisexual people really have it no different from gay men and lesbian women except the not-so-inviting possibility of violating Section 377 on multiple counts, in multiple ways. Since the law applies to carnal intercourse against the order of nature, with men, women and animals, you are breaking the law irrespective of whether you are a man or a woman and whether your partner is a man or a woman

Transgender persons

Recently,  in 2014, the Supreme Court officially recognized transgender as the ‘third gender’. This legal inclusion is a great move in helping the transgender persons, who have been socially excluded for centuries, get closer to the mainstream. Yet, this move raises a question mark of whether the Section 377 could apply to transgenders, since it clearly mentions only men, women and animals. Some have felt that it still can, therefore asking the courts to re-look at Section 377 if it really wants to liberate the transgender community in the true sense. So, appeals have been made within the legal community to exclude transgenders from the victim-list of the Section 377, given their already brutal history of exclusion. Even the recent judgment that establishes rights of transgender persons in the law set aside 377 and the ongoing case as something that the judgement would not take a stand on. The reality is that there are many other laws that criminalise transgender identities and actions of transgender persons unfairly and 377 is only one of them.

 

 

Hetrosexuals (straight)

Section 377 is often misconceived as being just an anti-LGBT law. To be ‘fair’, it also criminalizes straight people as much as gay people. Oral sex between a man and a woman as well as anal sex between a man and a woman can also be interpreted as illegal as per the clauses of the law. However, the law is rarely actually applied and mostly used for intimidation and victimising specific people, mostly gay men and transgender women, as well as others who are visibly gender non conforming.

Do you think Indian laws on LGBT are dated and need some fundamental change?  Share your thoughts with Love Matters in the comment section of this page or on our Facebook page. If you have a specific question, please visit our discussion forum - Let’s Talk

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